Haryana

Panchkula

CC/604/2019

SUKHDEV SINGH. - Complainant(s)

Versus

M/S AHUJA ENTERPRISES. - Opp.Party(s)

SUMIT NARANG

23 May 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                       

Consumer Complaint No	:	604 of 2019
Date of Institution	:	04.11.2019
Date of Decision	:	23.05.2022

 

 

Sukhdev Singh, S/o Late Sh. Ishar Singh R/o H.No.172, AKS Colony, Sub Tehsil Zirakpur, District SAS Nagar(Punjab).

 

                                                                           ….Complainant

Versus

1.     M/s Ahuja Enterprises through it’s Proprietor/Authorized Signatory, having its Shop at-Shop No.14, Shopping Complex, Chandimandir Cantonment, Panchkula, Haryana.

2.     M/s ACE through its proprietor/Authorised Signatory, having its Service Centre at –E-160, Phase VII, Industrial Area, SAS Nagar.

3.     M/s Samsung India Electronics Private Limited through it’s Director/Authorised Signatory Sh. Gautam Sehgal, having it’s Registered Office at-6^th Floor, DLF Centre, Sansad Marg, New Delhi-110001.                                                                                                                                                            ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh.Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr.SushmaGarg, Member.

 

For the Parties:   Sh. Sumit Narang, Advocate for the complainant.

                        OPs No.1 & 2 already ex-parte vide order dated       24.12.2019.

                        Ms. Jyoti Rani, Advocate for OP No.3.

 

                                        ORDER

(Dr. Pawan Kumar Saini, Member)

1.             The brief facts of the present complaint are that the complainant had purchased a Samsung washing machine having model no.WA62K4200HY/TL and bearing serial no.03JQ5PBH502248X against invoice/bill no.1807 dated 06.11.2016 amounting to Rs.15,330/-. After few weeks of usage, it was found not washing the clothes properly and they remained dirty. The complainant even changed the washing powder but to no avail. Afterthat, the complainant contacted OP No.1 in month of February 2017 and requested it to replace the said washing machine but the OP No.1 refused to replace the same and asked him to approach OP No.2. The complainant approached OP No.2, however, no positive response was received from OP No.2. Several complaints lodged by the complainant with OP No.2 and response received is mentioned in para no.iii of the complaint. On the basis of complaint/service request no.4246899793 dated 09.10.2017, the said washing machine was taken to OP No.2. Complainant visited the service centre of OP No.2 number of times to ensure that the washing machine is repaired properly. On one such visit, OP No.2 told the complainant that his washing machine had been repaired and he could take it back to his home. At this, in order to verify, complainant asked OP no.2 to wash the dirty cloth in it in front of him. When the same was done, he was shocked to see that the dirty cloth was not cleaned properly. At this, complainant asked OP No.2 if the machine is having some manufacturing defect, complainant requested OP No.2 to take up the said issue with OP No.3 and replace it altogether or refund the price paid for it. The OP No.2 having failed to repair the machine kept on insisting the complainant to take the washing machine back. The OP No.2 further wrote a letter on 19.10.2018 & 26.12.2018 thereby falsely assuring the complainant that the said washing machine had been repaired and could be taken back by the complainant. It is also stated that when the OP No.2 declined the repeated requests made by the complainant to repair the washing machine properly and replace it altogether or refund the price paid for it, complainant got a legal notice dated 24.10.2019 served upon the OPs but no reply was received from the Ops.  Due to the above said act and conduct on the part of the OPs, the complainant has suffered mental and physical agony, financial loss and harassment. The OPs have committed deficiency in service and unfair trade practice; hence, the present complaint.  

2.             Notices were issued to the OP No.1 & 2, which were not received back either served or unserved despite the expiry of 30 days from the issuance of notice to OPs No.1 & 2; hence, they were deemed to be served and thus, due to non appearance of Ops No.1 & 2, they were proceeded ex-parte by this Commission vide its order dated 24.12.2019.

                Upon notice, OP No.3 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being baseless and false; not come with clean hands; suppressed the material facts. On merits, it is stated that the complainant approached OP No.2 on 19.02.2017 with an issue regarding the washing machine not cleaning the clothes properly. Prompt after sales services had been provided to the complainant  as and when required by him, though when the representative of the OP No.3 reached them and checked the washing machine it was working fine with no defects and issue in cleaning the clothes; the representative instructed the complainant to read the manual properly before the use and told him to use the Pre-wash feature for the clothes, which are too much dirty or have stains on them and to operate the washing machine as it was demonstrated to the complainant at the showroom at the time of purchase and as demonstrated by their engineer to them at the time of installation. The representative of the OP No.2 shared all the guidelines of washing with the complainant and specifically told him that the collar and the sleeves should be pretreated before washing and the guidelines shared were refused by the complainant to follow. On 09.10.2017, the complainant brought the washing machine to OP No.2 but after the checkup, it was found that there is no fault in it and was told to use the machine as per manual and take back the same. The complainant refused to take back the machine and demanded for a new washing machine or refund of the total cost of the washing machine. The OP No.2 has repeatedly requested him vide telephonic calls, letters and emails but the complainant is adamant  to replace his washing machine with a new one and refused to take back it. It is further stated that the washing machine is a fully automatic washing machine which requires different temperature and different modes depending upon various facts like fabric, stain etc., which was told and demonstrated to the complainant at the time of its purchase. So, there is no deficiency in service and unfair trade of practice on the part of OP No.3 and prayed for dismissal of the present complaint

3.             To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-4 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.3 has tendered affidavit Annexure R/A alongwith documents as Annexure R-1 to R-6 and closed the evidence.

4.             We have heard the learned counsels for the complainant as well as OP No.3, and gone through the entire record, minutely and carefully.

5.             In the present complaint, the replacement of the washing machine or refund of its purchase price, which was purchased vide bill dated 06.11.2016(Annexure C-1) amounting to Rs.15,330/-, on account of certain defects in it, has been claimed stating that clothes were not cleaned properly while washing the same in the said machine. The learned counsel for the complainant reiterating the averments made in the complaint contended that clothes remained dirty even after washing the same in the said machine and thus, the complainant approached the OP no.2 by filing several complaints, the details whereof has been duly elaborated in tabular form in para no.2(iii) of the complaint. It is contended that the said machine is still lying with the OP No.2 and thus, the Ops be directed to refund the purchase price amounting to price of Rs. 15,330/- alongwith interest and payment of compensation on account of mental agony, harassment and litigations charges.

6.             The Ops No.1 & 2 did not contest the complaint and were proceeded ex-parte vide order dated 24.12.2019.

7.             The OP no.3 has contested the complaint alleging that there is no manufacturing defect in the said machine and that the onus to prove the same is on the complainant by producing cogent evidence in the shape of expert report etc. The learned counsel contended that there is no expert report on record substantiating the allegations of the complainant that there were manufacturing defects in the washing machine. Reliance has been placed on the following case laws:-

1. Classic Automobiles Vs. Lila Nand Mishra & Anr. reported as 2010(I) CPJ 235(NC), in Para No.15, 16 & 19.
2. Chandeshwar Kumar Vs. Tata Engineering Locomotive Co. Ltd. & Anr. I(200) CPJ 2(NC)
3. Ramesh Chandra Agarwal Vs. Regency Hospital  Ltd. & Ors. 2010(I)(SC).
4. Dr. Hema Vasantilal Dakoria Vs. Bajaj Auto Ltd. & Ors. reported at II (2005) CPJ 102 (NC)
5. Maruti Udyog Limited Vs. P.Rathnadurai, reported as 2004(II) CPJ 563(NC).

 

8.             Reiterating the averments made in the written statement, the learned counsel contended that the complainant did not follow the pre wash directions in respect of the clothes, which were dirty and had stains on them. It is contended that the representative of OP No.2 had shared all the guidelines pertaining to use of washing machine and it was specifically told to the complainant that collar and sleeves had to be pretreated before washing. It is contended that washing machine in question is fully automatic, which requires different temperature and different modes depending upon various factors like fabric, stain etc. but the complainant failed to follow the relevant guidelines. Concluding the arguments it is contended that the washing machine has been working fine having no defect in it and thus, the complainant was asked either to collect the washing machine from OP No.2or permit him(OP No.2) to deliver the same at his address and thus, it is prayed that the complaint may be dismissed being baseless and meritless.

9.             The aforesaid contentions raised by the learned counsel for OP No.3 are not acceptable on several counts. Having perused the averments made by the complainant in para 2(iii) of the complaint, it is found that 12 numbers of complaints were lodged by the complainant qua the defect in washing machine but the Ops except on three occasions i.e. on 19.02.2017, 23.03.2017 and 09.10.2017, neither deputed any technical person to attend the complaint nor resolved the issue and closed the complaint, which fact in itself proves that Ops had been deficient while rendering services to the complainant. On 18.04.2017, a technical person, namely, Yusaf Malik inspected the washing machine and found as per job-sheet(Annexure C-2) that the quality of washing was bad and thus, the contentions of the complainant qua the defects in machine stand proved. In view of the observations made by the said technical person, namely, Yusaf Malik vide Job-sheet(Annexure C-2), it was imperative upon OP No.2 to get the washing machine inspected through a team of experts but OP no.2 preferred not to get the same inspected from any expert. Further, as per letter dated 26.12.2018 sent by OP No.2 to the complainant,  the machine was allegedly to be in a fine position but in the same letter, it is also mentioned that the said repaired product is still lying at service centre i.e. OP No.2. It is not clarified as to what kind of repairs by replacement of parts etc. were carried out by OP No.2. Moreover, there is no documentary evidence on behalf of the OP No.2 in support of its contentions that the washing machine was found having no defect and working absolutely fine. As mentioned above, the OP No.2 has preferred not to contest the present complaint and thus the contentions of the OP No.3 that the washing machine is absolutely free from any defect is not corroborated and substantiated by any documentary evidence. It is well settled legal proposition that mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

10.            In view of the aforesaid discussion, we have no hesitation to conclude that there has been lapse and deficiency on the part of the OPs No.2 & 3 while delivering services to the complainant; hence, the complainant is entitled to relief. The present complaint is dismissed qua OP No.1

11.            As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs No.2 & 3:-

1. To refund a sum of Rs.15,330/- to the complainant along with interest @ 9% per annum w.e.f. the date of filing of this complaint till its realization.

 

2. To pay an amount of Rs.3,000/-to the complainant on account of mental agony and harassment.

 

3. To pay an amount of Rs.5,500/- to the complainant on account of litigation charges.

               

12.            The OPs No.2 & 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.2 & 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced:23.05.2022

 

 

 

Dr.Sushma Garg         Dr. Pawan Kumar Saini         Satpal

                Member               Member                           President

 

Note: Each and every page of this order has been duly signed by me.

 

Dr. Pawan Kumar Saini                        

                                                Member